Humanitarian law, ethics, and journalism in Syria

A small number of journalists reporting from Syria have
recently interviewed prisoners of war under highly coercive circumstances. In
doing so, they have ignored the protections that are due to prisoners under
international humanitarian law, or IHL.

These
interviews raise important questions regarding the responsibilities of
journalists in armed conflict. To what extent should journalists be expected to
understand the principles and obligations of IHL? To what extent should
reporters, editors, and publishers apply these principles to their work?
Finally (and most complex), how should journalists balance the tensions between
the public interest in the free dissemination of information and the protections
accorded prisoners of war and other detainees in an armed conflict? I'm acutely aware of these issues as a former
senior prosecutor at the United Nations International Criminal Tribunal for the
Former Yugoslavia and former legal adviser to the United Nations International
Commission of Inquiry for Syria. The views here are mine alone, although they
are informed by my years of work on international humanitarian law.

Under the 1949 Geneva Conventions, prisoners of war must
at all times be humanely treated. In
addition, "they must at all times be protected, particularly against acts of
violence or intimidation and against insults and public curiosity." Further,
persons holding prisoners of war must in all circumstances treat them with
respect and honor. No form of coercion may be inflicted on prisoners of war to
obtain from them information "of any kind whatever." More recently, article 45
of Additional Protocol I to the Geneva Conventions, applicable to international
armed conflicts, grants the protections of "prisoner of war" status to persons
taking part in hostilities who fall into the power of an adverse party.
According to Additional Protocol II, similar protections are due to persons
detained during non-international armed conflicts. For example, "their physical
or mental health and integrity shall not be endangered by any unjustified act
or omission." Moreover, all wounded persons, "whether or not they have taken
part in the armed conflict, shall be respected and protected" and no one should
take advantage of their weakness in order to mistreat them or harm them in any
way. Stated more broadly, according to a rule of customary international
humanitarian law, persons hors de combat
must be treated humanely.

A strong
public interest exists in protecting the scope of freedom of expression and the
right to impart and receive information, in particular during an armed conflict
in which serious violations of human rights are being committed. Nevertheless,
during wartime, a tension exists between these liberties and the protections
accorded by IHL to prisoners of war. I argue that the international media in
Syria have not always properly balanced these tensions, resulting in
exploitation and abuse of prisoners of war.

In a story broadcast on October
17, an Al-Jazeera correspondent interviews a Syrian pilot who had been shot
down over the town of Al-Bab and taken prisoner by members of the Free Syrian
Army. One of the pilot's eyes was purple and swollen shut. As the filmed
interview progresses in the presence of the prisoner's armed captors, the
journalist explains to the public: "We had no way to establish exactly how he
had been treated before we got there, or
what kinds of pressure he was under. But we wanted to hear his story."
Among other questions, the correspondent asked the prisoner: "Did you
understand ... that you were bombing civilians?" The captured pilot appears
frail and afraid in the video but the journalist explains: "Most think the
pilot's innocence is feigned, a ploy to escape responsibility for his actions."
The nature of the questions and the journalists' comments concerning the
pilot's behavior only increased his vulnerability.

On December 7, the BBC broadcast
an encounter with six male prisoners detained at the Mezza Air Base in a detention
center operated by Air Force Intelligence, which, the BBC reporter mentioned,
was "Syria's most-feared intelligence service." The reporter described how
"human rights groups and former prisoners say torture happens here." In fact,
the United Nations Commission of Inquiry for Syria and Human Rights Watch has
documented the use of horrific torture against detainees at Mezza since at
least November 2011. In the broadcast, Air Force Intelligence officials
"paraded" (the BBC's term) six male prisoners for the cameras of the BBC and a
film crew from Syrian State Television, the Assad government's media outlet.
Several of the men were elderly and, according to the story, "all have
confessed to being in jihadist, Al-Qaeda-style groups." The passport of one of
the prisoners, an Algerian-French citizen, was filmed and broadcast, an act
that documented his identity. This man
declined to respond when asked whether he had been tortured; the other
prisoners said that they had not. The reporter noted that he could not vouch
for the statements of the prisoners. The broadcast continued with a description
of how the Assad government assigns blame to jihadist/terrorist groups for the
violence afflicting Syria, which provided a motive for the government to give
the BBC access to "alleged Jihadists."

Arguably, each broadcast had news
value. However, in addition to the propaganda value that these interviews
provide to one side of the Syrian conflict, the nature and tone of the
questions and comments in the Al-Jazeera broadcast imply the prisoner's
responsibility for war crimes against civilians, an especially dangerous
allegation given his vulnerable position as a captive of the FSA, and a charge
that might not be correct. Similarly, the BBC broadcast depicts the "confession"
of detainees to involvement in terrorist organizations, a perilous
acknowledgment to make by persons under the power of the Assad government, and
a potential justification for continued government human rights violations.
Finally, the coercive conditions of each interview with these prisoners
significantly weaken the value of the information contained therein. Taken together, these factors outweigh any
news value.

Circumstances may arise where the
publication of information in the media about prisoners and/or detainees may be
beneficial to their interests, and to the public interest. For example, the
1992 press photographs of emaciated prisoners standing behind barbed wire in
the town of Prijedor, Bosnia and Herzegovina, cast the world's attention on the
operation of concentration camps by Bosnian Serb forces and the plight of
non-Serbs incarcerated there. In August
2012, FSA forces permitted the New York
Times' Brian Denton to photograph one of their prisoners, who the news
organization described as a "mentally damaged" member of a government
paramilitary unit, with evident bruises and swollen limbs apparently resulting
from abuse he received from his FSA captors. There is a distinct difference,
however, between a still photograph or video material that identifies prisoners
and/or depicts the reality of harsh detention conditions, and an interview that
extracts information from a prisoner which 1) may be false and 2) may place
that prisoner and others in danger. The former can save prisoners' lives. The latter
may constitute abuse. The humanity principle underlying IHL may call for
different judgments in different situations, but it should not permit the
exploitation or endangerment of protected persons.

With respect to prisoners of war
then, what criteria should be used to balance the public interest to impart and
receive information with the IHL's protections against making detainees subject
to degrading treatment? One common-sense principle may assist journalists to
answer this question: When it is reasonable to believe that publication of the
detainee's face, identity, or other information may assist his or her safety and
well-being, and not lead to exploitation or abuse? Put more starkly,
journalists and their editors and employers might ask: Will this broadcast help
or damage the humanitarian interests of the prisoner of war?

By contrast, in situations of
likely duress and coercion, broadcasts of interviews and "confessions" produce
confusion rather than information, particularly given the difficulty of
verification in Syria. For example, both of the journalists reporting in the
media broadcasts described in this article felt it necessary to distance
themselves from the reliability of the prisoners' statements. Thus, the
prisoners' humanitarian interests may outweigh the public's interest in the
production and dissemination of these interviews. Further, such broadcasts by
major media outlets may encourage media-savvy belligerents holding prisoners to
mount more propaganda exercises using exploited detainees.

The
journalism profession is aware of these dangers. For example, in December 2012, Reporters Without Borders issued a
news release expressing its concern for the fate of Ukrainian journalist Anhar
Kochneva, allegedly held for ransom by rebels in Syria. Arrested journalists,
the group noted "should be treated humanely, or charged, or released." Two
videos of Kochneva had appeared on the Internet in which she "confessed" to
serving as a military interpreter for Syrian and Russian officers. Reporters
Without Borders noted that it was "deeply concerned that in both video appeals
the journalist seems to be speaking under pressure." Journalists in conflict
zones should extend these same concerns to the prisoners of war with whom they
have contact.

News media should take several
steps to help ensure detainees are afforded their rights under international
law. News organizations can be sure they have sufficient legal advice on IHL
issues, and then provide their journalists with instruction in the principles
and rules of humanitarian law. Journalists should not agree to meet with
prisoners of war with their captors present, as this increases the risk that
prisoners will be subject to coercion. And news outlets should incorporate IHL
principles into their guidelines for conflict reporting.

These
measures could reduce the risk that belligerent parties will exploit captives
and use news media as a propaganda tools. They might also assist journalists in
striking a balance between freedom of expression and IHL's protections of
prisoners of war.

Dan Saxon is a former senior prosecutor at the United Nations International Criminal Tribunal for the Former Yugoslavia and a former legal adviser to the United Nations International Commission of Inquiry for Syria. This piece reflects the author’s personal views.

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